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The wheels may be coming off the dubious deal cobbled together between the EU and the Department of Homeland Security to give US authorities access to airline data, in the shape of Passenger Name Records (PNRs). The US unilaterally announced that it would require this data on incoming flights earlier this year, and in response the European Commission agreed to supply it on a "transitional" basis. The transitional period would however now seem to be ending, and the two parties have begun singing from somewhat divergent hymnsheets.

Last Tuesday (2nd September) the Commission lined up with Commissioners Frits Bolkestein and Chris Patten, agreeing that the US had failed to give binding commitments that the PNR data would not be used in ways that breached the EU's Data Protection Directive, and has refused to limit the use of the data to the combatting of terrorism. Europe's objections are contained in a letter sent by Bolkestein to head of Homeland Security Tom Ridge in June (Statewatch has a copy of this here) doubting the adequacy of draft undertakings that had been submitted by the US at that point. Clearly, in the Commission's view these remain inadequate now.

Ridge's response, reported here by AP, is that European resistance is hampering anti-terrorism efforts, that we all "need to work together to develop international standards", (surely 'Act unilaterally to impose...'? - Ed), and that the US has already made concessions, including that the system would only be used for anti-terrorism purposes.

The Commission clearly does not agree that US undertakings on the latter are sufficient. According to Bolkestein's letter "only a tightly worded undertaking both about the way that US Customs and Border Protection (CBP) will use the data and about the conditions under which the data may be shared with and used by other agencies is acceptable." Note that this does not altogether rule out the sharing of data, but it would certainly make it impossible to share the information across multiple US agencies as a matter of standard procedure.

Bolkestein also objects to the failure of the US to filter out, pending the implemementation of filters by the airlines, non-required data such as religion and health information; raises the issue of advance passenger data (which seems not to have been discussed previously); and produces a potential showstopper in the shape of a binding legal framework and "an independent arbiter outside the US government." Bolkestein argues that, as US officials have said that individuals will be able to take grievances to court, binding legal force to the undertakings will be necessary. But "taking a matter to a Court in a country that is not your own is not a very assessable sort of justice". It's not entirely clear who he has in mind as independent arbiter, but the implication is surely some form of non-US body.

The Advanced Passenger Information (API) requirement seems to be an extension of the system as first announced. PNR data is required 15 minutes in advance of a flight's departure, while API is a passenger and crew manifest. This is now also required, and according to the DHS' FAQ on the subject, the data "is checked against the combined federal law enforcement database, known as the Interagency Border Inspection System (IBIS). IBIS includes data from the databases of CBP and twenty-one other federal agencies. Names are also checked against the FBI's National Crime Information Center wanted persons database."

One might observe that this sounds more like the system you'd expect than the one Ridge claims is only being used for anti-terrorism purposes.

Whatever, it currently looks like we're heading for a collision. The Commission's transitional deal played badly in Europe, and even if the Commission wanted to extend it it almost certainly couldn't. In the event of failure to reach agreement the airlines would face fines from the EU if they continued to share data, and the ire of the US if they didn't. Under such circumstances they clearly couldn't take off if they had any EU citizens on board. ®